Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00956-GMS

Document 140

Filed 04/20/2006

Page 1 of 42

THE NEUBERGER FIRM
A TTORNEYS AND C OUNSELLORS AT L AW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.N EUBERGERL AW.COM EMAIL: I NFO@N EUBERGERL AW.COM

T HOMAS S . N EUBERGER, ESQUIRE S TEPHEN J . N EUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

April 20, 2006 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE:

Via CM/ECF Filing

Price, et al. v. Chaffinch, et al., C.A. No. 04-956-GMS Deposition of Retired Major Joseph Forester

Dear Judge Sleet: As requested at the pretrial, attached is the deposition transcript of retired Major Joseph Forester. Due to their confidential nature, his medical records which were an exhibit at the deposition, are being filed separately under seal.

Respectfully submitted, /s/ Thomas S. Neuberger Attorney for Plaintiffs cc: Thomas S. Neuberger, Esq. (via CM/ECF) Martin D. Haverly, Esq. (via CM/ECF) Richard M. Donaldson (via CM/ECF)

FTU \ Letters \ Sleet.08

Case 1:04-cv-00956-GMS

Document 140

Filed 04/20/2006

Page 2 of 42

Tab A

Case 1:04-cv-00956-GMS

Document 140

Filed 04/20/2006

Page 3 of 42

In the Matter Of:

Price, et al. v. Chaffinch, et al.
C.A. # 04-956-GMS --------------------------------------------------------------------Transcript of: Joseph N. Forester December 22, 2005 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 4 of 42
Chaffinch, et al. December 22, 2005 Page 1

v. C.A. # 04-956-GMS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, et al., ) ) Plaintiffs, ) ) Civil Action v. ) No. 04-956-GMS ) COLONEL L. AARON CHAFFINCH, et al., ) ) Defendants. ) ------------------------------------) SERGEANT CHRISTOPHER D. FORAKER, ) ) Plaintiff, ) ) Civil Action v. ) No. 04-1207-GMS ) COLONEL L. AARON CHAFFINCH, et al., ) ) Defendants. ) Deposition of JOSEPH N. FORESTER taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Wilmington, Delaware, beginning at 10:05 a.m., on Thursday, December 22, 2005, before Kurt A. Fetzer, Registered Diplomate Reporter and Notary Public. APPEARANCES: THOMAS S. NEUBERGER, ESQ. CHERYL A. SASADEUSZ, ESQ. THE NEUBERGER FIRM, P.A. 2 East Seventh Street - Suite 302 Wilmington, Delaware 19801 For the Plaintiffs WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477

Wilcox & Fetzer, Ltd.

Professional Court Reporters

(302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 5 of 42
Chaffinch, et al. December 22, 2005
Page 4

v. C.A. # 04-956-GMS
Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

APPEARANCES: (Cont'd) ROBERT J. FITZGERALD, ESQ. MONTGOMERY McCRACKEN WALKER & RHOADS, LLP 123 South Broad Street Philadelphia, Pennsylvania 19109 For the Defendants ALSO PRESENT: B. KURT PRICE CHRISTOPHER D. FORAKER WAYNE WARREN - - - - JOSEPH N. FORESTER, the deponent herein, having first been duly sworn on oath, was examined and testified as follows: EXAMINATION BY MR. NEUBERGER: Q. Major Forester, just so I can send you the witness check and in case I actually had to subpoena you for trial, what's your mailing address where I can send the check to? A. 12 Blue Heron, that's the color blue H-e-r-o-n, Drive, Georgetown, Delaware. Q. What's the zip down there? A. 19947. Q. Thank you. And you were born in 1946? A. Correct.
Page 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

and you gave a different answer to a question than what you gave today, I'm allowed to under the rules to point that out to the Court and jury. You understand that? A. Fine. Q. All right. Now, we're only going to mark about two or three things today, but the state confidentially has produced portions of your personnel file, as well as that of various other troopers and they're being kept confidential so what I would like to do is just mark this first. MR. FITZGERALD: If I may real quickly, the state has produced all of his records and you identified portions of it to take back, just to clarify the record. MR. NEUBERGER: Yes. That's correct. I didn't copy everything. THE WITNESS: Okay. MR. NEUBERGER: Why don't we mark this as Forester, with one r, Deposition Exhibit No. 1. (Forester Deposition Exhibit No. 1 was marked for identification.) BY MR. NEUBERGER: Q. Do these appear to be records from your
Page 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. When you were with the State Police did you ever have the opportunity to have a deposition taken? A. Oh, yeah. Q. Then I'm sure you also testified in criminal cases on numerous occasions? A. Correct. Q. Well, this is a civil case so I actually want to point out a couple of things. Okay? A. Okay. Q. If I ask you a question today that you don't understand, just let me know and I will rephrase it. Okay? A. I will do that. Q. If you have to take a break, let us know and we will take a break. A. Okay. Q. I don't want you to guess, so if you don't know just say you don't know. A. No problem there. Q. Are you taking any medicines or anything like that that would interfere with your ability to remember things today? A. No. Q. And then at trial if you're called as a witness

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

personnel file? A. (Reviewing document) This is my chicken scratch so I'm assuming that one is all right. Yes. That looks pretty much like me. Q. Right. Just for the record, these are just maybe half of what I asked to be copied. I mean, you know they also keep records on summary discipline or things like that -A. Mm-hmm. Q. -- in the personnel record? A. Correct. Q. Okay. I don't know. You may have -- you didn't have much of a record. A. I wasn't too bad. Q. I think you might have dented a car once or something like that. I don't know what it was. I didn't feel there was any need to copy any of those kinds of things. What I am going to ask you is to sort of tell me from the academy forward to your retirement for the 28-year career you had basically what your assignments were. Page 2 here might be a good little cheat sheet to help you. A. That would be a big help.

2 (Pages 2 to 5) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 6 of 42
Chaffinch, et al. December 22, 2005
Page 8

v. C.A. # 04-956-GMS
Page 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Why don't we just try to march through your attending the academy, your initial patrol assignments, what troops they would have been in and just march forward through your career and then also as you advanced to different ranks, just let us know about that. So when did you graduate from the academy? A. Okay. Well, it says here that I went to Troop 7 in March of '73. So I know I started at the academy in October of '72, so it's about six months, so probably late February, early March sometime I finished. Then it shows where I made, was promoted to trooper first class in '75, October 16th, which is about three years after I went on, which is about normal. Q. Where would you have been assigned for those three years? A. Troop 7. Q. Okay. A. Troop 7 patrol. Q. All right. So Troop 7 was your first assignment? A. Correct.
Page 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

and what they would call today aggressive driving but we called it speed and traffic enforcement. Q. Were you operating out of a troop while you were in this control position? A. No. We actually worked right out of headquarters traffic, but we never went to headquarters. I mean, we were assigned to Sussex County and we just worked the various troops. The assignments came out of headquarters, but we worked the county. Q. You were working the county. Okay. So is it fair to say then in about December of '76 you're coming out of Troop 7 patrol and you're really getting your direction from headquarters? Is that what you just told me? A. From headquarters traffic section, right. Q. Headquarters traffic, right. What happens next for you? A. The next thing I see we're TAD, which is temporary assigned duty, back to Troop 7, basically for the summer months. Q. So is this in May of '77? A. This is May of '77 and it says terminating September '77. What they did, if I remember
Page 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. And I always get these wrong. Troop 7, is that Rehoboth? A. Dewey Beach. Q. Dewey Beach/Rehoboth? A. It was in Dewey Beach back then. Q. Really? A. Oh, yeah. Yeah. Q. No kidding? A. Yeah. Right in Dewey Beach. Q. So Troop 7 patrol Dewey Beach. And up through this 1975 promotion to trooper first class you're still at Dewey Beach? A. Correct. Q. All right. So go ahead. A. Okay. The next thing it shows is we're assigned to the tactical accident control team. It shows where I went there in December of '76. Basically, what that was was it was a law enforcement/traffic enforcement unit. It ranged from four to six members during the time I was on it and we worked the entire county. We would report to various troops, Troop 5 being over in Bridgeville, Troop 4 being in Georgetown, Troop 7 being on the east side. And we would work the high violation areas of speed

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

correctly, the guys that were on the tac. team, that they sent from whatever troop they were went back to the respective troops. I know I went to Troop 7. Q. Would you have been back on the patrol function then? A. Exactly. I would have been working out of an office shift. Q. This is still while you were a trooper first class? A. Correct. Q. Okay. Then what happens next for you? A. Next was in September of '78 I was promoted to corporal. Q. Okay. Where were you stationed when you got promoted? A. I think I was in the tac. team when that happened. Q. So back to the tac. team? A. Yeah. Q. So after September of '77 you went back to the tac. team? A. Yeah. They said the temporary assigned duty terminated on September 12, '77, so we just reverted back to the tac. unit at that time.

3 (Pages 6 to 9) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 7 of 42
Chaffinch, et al. December 22, 2005
Page 12

v. C.A. # 04-956-GMS
Page 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. So your promoted to corporal. You're still in the tac. unit operating in Sussex County. And what happens next? A. Okay. It doesn't have a date, but somewhere along there I got assigned to headquarters traffic section. And what that was it was the year Colonel Cochran was the chairman of the CARE conference, which was a nationwide thing, and it rotated and he was the chairman. And they sent me to traffic and, to tell you the truth, it says assigned to headquarters. I thought it was a temporary assigned duty, but it might have been permanently assigned. I was up there, I was in charge of all of the statistics that was gathered during the CARE conference or during the CARE operation. That's Memorial Day, 4th of July and Labor Day and all the weekends during the summer months, which is when the Operation CARE took place. Don't ask me what it stands for. I just know it was CARE. Then my job, part of my job responsibilities there was to get all these weekend statistics from throughout the state and call it to the national people of CARE. And then they put out stats through NHTSA, which was the National Highway
Page 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

traffic as my new assignment. Q. Okay. A. Yeah. Next is -- okay. Q. Okay. So '72 to '81 you're in Sussex County. Then April of '82 you remember being permanently assigned there in traffic in Dover, right? A. Correct. Q. That's at headquarters, right? A. Correct. Q. And do you then become a lieutenant in the traffic section? A. No. That promotion to sergeant is what I stayed in. And then they got something out of sequence here. They have assigned to headquarters traffic section 10-81. And, you know, those two days there or dates there, that may be when I did go up there, but, like I said, they have two assigned to traffic. That first one back where there's no date, I think I was TAD and where they have assigned to headquarters traffic section 10-81, that may be when they put me up there, but for whatever reason I'm recalling when I made sergeant is when they sent me to traffic section. Q. Okay. So do you get promoted to lieutenant
Page 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Traffic Safety Administration, and then your local office of Office of Highway Safety and those people got that information too. Q. Then you actually were working out of headquarters in Dover? A. Yes, I was. But I'll tell you, that's why my memory is serving me as being a temporary assignment because I was still on the tac. team. I was on the tac. team up to, if my memory serves, up to about '80 or '81. I was sort of pulling double duty is what it amounted to. Q. Double duty. Let me make a note of that. So you're saying you remember continuing with tac. until '81, right? A. Mm-hmm. Q. So is it fair to say that from your first assignment in March of '73 through at least '81 you're working in Sussex County? A. Yes. Q. Okay. So you're helping out at headquarters and somewhere along the line you got promoted to sergeant, so let's put that in here. A. Right. April 2nd, '82 I was promoted to sergeant and that's when I remember being assigned to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

while you're in traffic? A. Well, it's a long story on that. As you can see, I made sergeant in '82. Q. Yes. A. I was preparing to take the test for sergeant and I was on the promotable band for sergeant, but I ended up making it. So I wasn't even going to test for lieutenant because I just made sergeant. Q. Yes, I was noticing that. A. But the people told me, they said, "Go ahead and do it." They said, "There's not much difference in testing." I said okay. So I can honestly say it's the first test I went into that I really wasn't sweating because -Q. You didn't care? A. -- it was all a plus if I made it. And as luck would have it, I made it. That's why you see I was only a sergeant for, what, about eight months. Q. Okay. So January of '83 you become a lieutenant? A. Correct. Q. And what's your assignment when you become a lieutenant?

4 (Pages 10 to 13) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 8 of 42
Chaffinch, et al. December 22, 2005
Page 16

v. C.A. # 04-956-GMS
Page 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. I was assigned as the OIC of the public information office. Q. Okay. How long did you serve as the OIC at the public information office? A. Well, that says 6-14-82. So a little over a year is what I remember. And then it's showing the following year in June of '83 I went down as deputy commander as a lieutenant at Troop 5. Q. So aside from this interval say of '81 to the middle of '83 at headquarters or whatever, now you're returning to Sussex County at Troop 5 in June of '83. Is that correct? A. Correct. Q. And you're at Troop 5. And what's next for you? A. Okay. Then I spent about two years there and then I got assigned to deputy troop commander -- I'm sorry. Assigned to headquarters community relations director. Apparently, the community relations section had fallen into some disrepair at the time and they asked me to go up there and see if I couldn't rejuvenate it and that was my assignment in June of
Page 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. And how long do you continue serving as a commander of Troop 5? A. Okay. If you follow this thing, you're going to have to drop down a couple of places. Then I was assigned to Troop 7 as troop commander in it looks like February of '93. Q. As the commander of Troop 7? A. Correct. Q. In '93 is this still in Dewey Beach? A. No. It's up at its current location now. Q. Okay. So you commanded Troop 5. You commanded Troop 7. What else happened? What happens next? A. The next thing was I got promoted to major in July of '94. Q. Do you stay at Troop 7? A. No. I was then assigned to headquarters, executive staff. Q. Okay. So up through July of '94 you're still serving in Sussex County, correct? A. Correct. Q. And then do you stay at headquarters through the end of your career? A. Yes.
Page 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

'85. Q. Okay. Were you basically there for a year into '86? A. Correct. Q. So were you at headquarters for that? A. Correct. Q. Okay. And do you ever return back to Sussex County? A. Yes. Back in July of '86 I was then assigned to Troop 7 as deputy troop commander. Q. Are you still a lieutenant? A. Still a lieutenant, yes. Q. Okay. And do you get promoted to captain? A. I got promoted to captain. It says here May of '89. Q. Okay. Where do you get assigned? A. Okay. You'll see the next block down should have been first because I went to Troop 5 in February of '89 and I was the troop commander, but I did not get promoted to captain because you have to wait until people officially retire before the slot opens up. So I was there from February of '89 to May of '89 and then May of '89 I officially was put on captain rank at Troop 5 as troop commander.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. So July of '94 you go to headquarters on the executive staff. And do you become the -- which of the executive staff positions do you take? A. I was the operations officer at that time for Kent and Sussex County. Q. So in '94 you become the operations officer. I noticed they had it down here two times. I just didn't understand that. A. I think what that second one is there was a period of time there, and I can't say exactly how long, they had a reassignment of the executive staff, is what they did, and they actually made me the operations officer for all three counties. And I want to say that was something less than a year. THE WITNESS: If you guys know? I can't remember. A. It was not quite a year. Q. I remember taking the deposition of retired Lieutenant Colonel Tom Marcin. There was a time I think he said when he had all three counties too, so I guess that happens with retirements and things. A. Right. Q. At some point in time you even had additional responsibility?
5 (Pages 14 to 17)

Wilcox & Fetzer, Ltd.

Professional Court Reporters

(302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 9 of 42
Chaffinch, et al. December 22, 2005
Page 20

v. C.A. # 04-956-GMS
Page 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Exactly. Q. That additional responsibility included New Castle County? A. Exactly. Q. But from '94 through November of 2000 you had responsibilities as the operations officer for Kent and Sussex Counties? A. Correct. Q. So is it fair to say that your career spanned about 28 years? A. Mm-hmm. Q. Yes? A. Yes. I'm sorry. Yes. Q. And except for these short stints at headquarters for traffic or public information function, your career was in Kent and Sussex Counties, major time in Sussex County? A. Major time in Sussex County. Q. I guess when I say Kent County, you never were assigned to the troops there? A. Never. Q. But you had operational responsibilities? A. When I became major then they fell under my command, correct.
Page 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. If you officially retired in November of '00, I think Dave got appointed in April of the next year. A. I think Chaffinch ended up being in my position for a while. Q. Okay. A. But I know there was a period of time there -and that's probably when Tommy Marcin had all three counties. But I think Chaffinch went from his position, whatever it was there as a major, to operations major, I think. Q. See if this refreshes your recollection. I mean Chaffinch went from technology major to operations in Kent and Sussex. A. Well, if that happened, then he -Q. Then he replaced you? A. Yes. Q. Anyway, you do remember now Captain Barbara Conley, right? A. Yes. Q. And back there in the eighties, I want to go back to '84 or '85, is it true that she was in the chain of command under you? A. I'm looking for the time frame I was over at Bridgeville.
Page 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Thank you. Now, do you remember under your command -well, do you know present Captain Barbara Conley? A. Yes. Q. She's the director of traffic? A. Okay. Q. Are you aware of that? A. I knew, I knew she was up there one time or another. I didn't know she was still there. Q. Right. In fact, when you retired in -- you said you retired in November of 2000, right? A. Mm-hmm. Yes. Q. I think just before you retired, she became the assistant director of traffic. Do you have a vague memory of that? A. Well, November 1st was my official retirement date, so I was gone, I think I left August 1st. Again, I think that's when I left. Q. Just so I understand the sequence, do you have any idea who replaced your vacancy after you retired? Was it Dave Baylor? A. When I retired it was a while before they put anybody in there, but I think Dave was the next one that came on board.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Assigned to Bridgeville from '83 and so that would be, yes, she was there, I'm almost sure she was there both as a lieutenant and as a captain. Q. In fact, let me just -A. I just don't recall when she came on the job. Q. Right. I mean, she was known as Barbara Miller before she got married. A. Right. Q. Do you remember that? A. Correct. Q. I'm going to show you some summary discipline that you were involved with just to refresh your recollection of the chain of command thing back in 1984 and 1985. MR. NEUBERGER: Let's just mark this as Exhibit No. 2. MR. FITZGERALD: Tom, can you tell me where we're going with this? MR. NEUBERGER: Sure. I'm laying a foundation that she has personal knowledge of having worked with him back in '84 and '85. That's all. MR. FITZGERALD: Okay. (Forester Deposition Exhibit No. 2 was marked for identification.)

6 (Pages 18 to 21) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 10 of 42
Chaffinch, et al. December 22, 2005
Page 24

v. C.A. # 04-956-GMS
Page 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

BY MR. NEUBERGER: Q. Do you see, is this your handwriting on these three pages? Lieutenant Joseph N. Forester? A. Correct. Q. Right? A. Yes. Q. These are just some summary discipline records from Captain Conley when she was at Troop 5 in Bridgeville. Do you see that in the upper right-hand corner? A. Yes. Q. So just trying to refresh your recollection, was she in your chain of command back here in '84 and '85? A. Yes. Q. Okay. That's all I needed to know there. We're done with that. And throughout your career, for example, you said you were the commander of Troop 5 beginning in February of 1989. Do you remember that? A. Correct. Q. And I believe she would testify that she was a traffic lieutenant at Troop 5 in -- I'm sorry. Wait a
Page 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

have gone down to Troop 5 that latter part there. Q. Right. I think she would testify that in '97 to '99 at Troop 3 in Camden she was a traffic lieutenant. A. Correct. Q. You have a memory like that? A. Yes. Q. Then she would testify that '99 to 2000 before she went to headquarters she was a traffic lieutenant in Troop 5 Bridgeville. Do you remember both of those? A. That's very possible, yes. 2000 was a hectic year for me. I was in charge of putting the plan together for the state for the 2000 collapse of everything, so I don't remember where everybody went that year. Q. Okay. Did you find her to be a truthful officer? A. I found Barbara to be truthful to me, yes. I can't say that I ever caught her in a lie. I think, I think we had a good working relationship. Q. Well, what I wanted to ask you was having worked under your command, she would testify that there was a nickname for you.
Page 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

minute. '89. Let's go back. She would testify that she was a trooper at Troop 5 from '82 to '93. Does that sound -A. '82 to? Q. '93. A. Yeah. That sounds right. It's within the time frame that I would recall her. Q. Right. When you were the commander of Troop 5, she would have been a trooper working under your command. Is that right? A. Correct. In fact, if she got there in '82, she would have been there when I was a lieutenant. Q. Yes. Okay. A. That's what I couldn't recall for sure. Q. Okay. And then when you were operations commander for Kent and Sussex Counties from '94 to 2000, let's just focus on that, okay, I think she would testify that in '99 and 2000 she was a traffic lieutenant at Troop 5. Do you recall her being a traffic lieutenant under your command when you were operations commander? A. You know, I recall her being a traffic lieutenant, but my recall is at Troop 3, but she may

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Which one? Q. Okay. Is it correct that in the division you had the nickname Miracle Ear? A. Miracle Year? Q. No. Ear, e-a-r, Miracle Ear. A. If that happened, I'm not aware of that one. Q. So you have never heard that nickname? A. That's not one I heard. Q. So that's not one of the ones you heard? A. No. Q. Okay. Do you have any reason to doubt the truthfulness of that kind of a statement from Captain Conley who worked under you, now Captain Conley who worked under you? A. I wouldn't doubt it was said, no. Q. That obviously reflects there might be some things about hearing in your background and we're going to talk about that. A. Correct. Q. The reason you were called to testify as a witness today is I happen to represent Corporals Kurt Price and Wayne Warren in a case against the Delaware State Police. I want you to know that. Do you understand that?

7 (Pages 22 to 25) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 11 of 42
Chaffinch, et al. December 22, 2005
Page 28

v. C.A. # 04-956-GMS
Page 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. No problem. Q. And some of the issues in that case relate to their being relieved of their duties as a police officer because of hearing issues they have and whether or not that's consistent with historic practices of the Delaware State Police, so that's how you have gotten involved. Do you understand that? A. No problem. Yes, I understand. Q. Was there some point in time when you actually started wearing hearing aids while you were a uniform trooper of the Delaware State Police? A. Yes. Q. And we're going to look at your records a little bit later to try to get all of the details. But before we look at the records, do you remember approximately when you would have started wearing hearing aids? A. It was after I was on executive staff, so I'm going to say it was sometime '96-97-ish. Q. Okay. A. In fact, I can tell you when it was. It was 1997 because I was 51 years old. Q. Okay. That's when you would have been a major
Page 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Those were the two areas of my deficiencies. Q. Okay. So is it fair to say that it was those kinds of symptoms that led to your having to get hearing aids? A. Well, yes. Q. Right. And had you had those kinds of problems for several years before you started wearing hearing aids? A. Well, no, not several years. I noticed it and then I believe the first medical time that I realized that it was just more than me was it was picked up in one of my physicals and when that happened then that's when I went and had something done with it. Q. Just so I'm clear, right now I'm only asking you for your best memory and we are going to look at the records. So I will take whatever answers you're giving me as your best attempt to remember things that happened a long time ago. Is that fair? A. That's fair. Q. Okay. But you're saying you had some hearing problems of the nature you've described and eventually it led to your having to wear hearing aids? A. Correct.
Page 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

who was the operations commander of Kent and Sussex County, correct? A. Correct. Q. Were you wearing, did you start wearing two hearing aids? A. I started with two. Q. So does that mean in both ears? A. Correct. Q. And is it true that before you started wearing the hearing aids that you recognized that you had hearing difficulties even before you put on the hearing aids? A. Well, let me be pointblank. What my problem was is I had two things that I noticed when I was up at executive staff and I really didn't notice a problem until then. It was, one -- and this isn't a sexist statement, but I had a hard time understanding ladies on the telephone for whatever. It was just the pitch of their voice that created a hearing problem for me to understand what they said and many times I would have to ask them to repeat. And then the other one was being in a room with a lot of background noise. Q. Okay.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. You're saying in communicating with at least people with female voices over the telephone you were having problems understanding everything that was said? A. I would have a hard time hearing. I would have to ask them to repeat, correct. Q. And you're saying that in closed spaces with lots of background noise, once again you were having difficulty hearing everything? A. That's correct. Q. Okay. Do you remember when your family first started to notice you were having hearing problems? A. No. Q. There may be a reference in the medical things. We will look at that. Right off the top of your head you don't remember? A. No. Q. Do you remember when you first started to notice that you were having hearing problems? A. Well, like I said, the first I noticed it was when I was on the executive staff because I think the first thing I noticed was the phone conversations. And then you would be in meetings in a room more at

8 (Pages 26 to 29) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 12 of 42
Chaffinch, et al. December 22, 2005
Page 32

v. C.A. # 04-956-GMS
Page 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

that level than I was previous in my previous assignments and I would notice it. So I'm going to say I made executive staff in '94, so sometime between July of '94 and sometime in '97, if my memory serves me, when I went and had my audiology test taken, given, so sometime within a two-and-a-half, three years time frame it occurred. Q. So you had an audiology test, right? A. Mm-hmm. MR. NEUBERGER: Let's mark this as Exhibit 3. These are some marked-out confidential medical records, not of you but just of an unknown, unnamed person that appear to be audiology tests. I'm going to see if that jogs your memory about the kind of test that you said you had here. Let's make this Exhibit 3. (Forester Deposition Exhibit No. 3 was marked for identification.) MR. FITZGERALD: Tom, what is he supposed to be looking at this for? BY MR. NEUBERGER: Q. You said you had an audiology test, right? A. Mm-hmm. Yes.
Page 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

And it was up in Dover and I want to say not State Street. I think it's Governors Avenue. It's right near the hospital. Q. Right. The Kent General? A. ENT or something. Does that sound right? I still go to him and I can't tell you. They have an office down there and they have an office in Milford. Q. In Milford. At Dr. Smith's in Dover, he was the person who you have been seeing throughout for the audiology test? A. Correct. He also has an assistant that works with him. I forget her name. One or the other have done my test. They're the two. Q. Any records as far as the level of hearing loss you have now as well as in the past would be in Dr. Smith's office? A. Correct. Q. Right? A. Correct. Q. Okay. Any charts or results of your audiology test would be in Dr. Smith's office, right? A. Correct. Q. If we just turn to the second page of this exhibit, this is an X'd out report after an audiology
Page 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Does this appear to be the kind of test results you got when you had an audiology test? A. I'm going to tell you the truth, sir, I don't know. I'm assuming, everything being equal, that this is probably what they do. I can't recall what papers were even shown to me. I can recall some of the conversation that I had because I still go and, in fact, I'm due for my next hearing test on January 6th. Basically, I remember the verbal part of it more so than I do the paper part of it. Q. Do you remember them putting you in a room and putting a headset on your ears? A. Right. And he talks to you like this (demonstrating). Q. And the guy talks to you and asks you to repeat back what he said? A. Exactly. He says a series of words and he has his mouth covered or she had her mouth covered and they ask you to repeat back what they say. Q. Okay. Just on that portion when you had this audiology test, do you remember the facility that did the audiology test for you? A. Well, it was Dr. Smith. I remember his name.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

test, I'll assert that for you, of a test that somebody had in December of 2004. Do you see where it has like impressions? It has test results, test results, recommendations. Do you see that there? A. Mm-hmm. Yes. Q. After you had your audiology test, do you remember today whether or not any reports were written about your test results? A. I'm sure they were, but I can't say that I received any. Q. Right now you just don't remember what any of your reports said? A. I know from going to my people that I don't get one of these to take home with me. I mean, I'm sure if I asked I could, but I just never asked. Q. Does your audiologist send your test results to your family doctor? A. No. Q. No? A. No. Q. Okay. A. That's a separate entity that I go to. Q. No. I understand that. You have never

9 (Pages 30 to 33) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 13 of 42
Chaffinch, et al. December 22, 2005
Page 36

v. C.A. # 04-956-GMS
Page 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

asked -A. Because this guy, I actually have been going to this one longer than I have been going to my current family doctor. So if he does, I'm not -- he hasn't done it through my direction and I'm not aware that he has. Q. So this Dr. Smith, who you don't remember his full name -A. Eric is his first name. Q. Eric. All right. And you said his offices are near Kent General, that whole medical area around there? A. He has offices there and Milford. Q. Do you go to the Milford office? A. That's the one I usually go to because it's closer. And they used to have one in Lewes, but that has since closed. I went there when they had those offices because it was closer. Q. All right. So they had one in Lewes before, but they closed that? A. Correct. Q. Aside from putting the earphones on you and reading you the words and everything, did they ever wire you up, put electrodes and everything like that
Page 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

periodic physicals you used the state's doctor? A. Correct. Q. And did the state's doctor run audiology tests also? Is that what you're saying? A. I can remember -- let me see here. They're on State Street is where we went. He gave me some kind of test because, because I can remember at some point in time and then I had previous discussions on it where he said that "You were having some higher decibel levels," if that's the correct terminology, is where my, is where I was lacking. Q. Right. Did he explain, did you learn from whoever was doing your audiology test that because of some hearing loss you would have problems hearing things in crowded rooms or crowded areas? A. I'm sure the conversation went something like that. I don't remember what the exact conversation was. Q. Right. But you learned from your testing that you had hearing loss in the area of hearing higher decibel levels? A. My recollection is the higher decibel levels is where my problems were or are. Q. Right. I was trying to determine when your
Page 37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

on your brain and do all sorts of beeps and things like that? A. No. The only thing I had is him actually verbally talking to me behind the paper and then the headset had pitches and you just pressed a button to let them know when you heard the noise. Q. Do you recall whether he concluded -- I might have forgot to ask you this. Are you saying it was like sometime before '97 that you had your first audiology test, if you remember? A. You know, I think -- I'm almost positive that we also had tests with our state physicals with the state. Q. We're going to look at that. A. But I never went -- well, let me back up. I can't say never. I had one prior to going on the job back in 1972. But other than that, I don't recall ever going to any physical I had on my own and having to get it done, other than at the state physicals that I had and it just became a part of it. I don't think it was done annually, but it was done periodically. Q. Are you saying that when you had your state

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

first audiology test might have been. We're going to look at these records. You might have had tests outside of the State Police. Okay? A. Can I speak here for a second? Q. Well, you're not allowed to ask him advice during a deposition. A. I'm not allowed to ask him? Q. No. No. A. Well, let me just put it this way. We're across the table here. I have had conversations with the gentleman to my right and we went over some, we reviewed some things. And in that review within the last couple, three weeks it came across the examinations that I had with the state people. With that knowledge, I know that I had testing. But without having been told this is what went on, you know, I can remember having tests, but I can't remember the tests themselves. It's just I don't remember. It's every year you went for a physical and just whatever they had you do. Q. What you're telling me now is that before today's deposition the attorney for the State of Delaware asked to meet with you? A. Well, we had a telephone conversation.

10 (Pages 34 to 37) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 14 of 42
Chaffinch, et al. December 22, 2005
Page 40

v. C.A. # 04-956-GMS
Page 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Okay. So you had a telephone conversation with the attorney for the State of Delaware? A. Correct. Q. At that time did you have your medical records from the State Police in front of you? A. No. Q. At that time did he have the medical records from the State Police in front of you? A. He had something that -Q. In front of him? A. Right. Q. In front of him? A. Right. Q. Did he tell you what he thought was in the records? A. What he reviewed with me was my physicals starting ninety something and went each year. And then we hit a year where it said that it was abnormal and then they went to the next year where they came back normal. One of the questions was was that with your hearing aids in or out and I said I don't remember. I don't know if they did the test with them in or out. I don't know.
Page 39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

you were having some hearing problems. A. Okay. The only thing I can say is that I do not recall having any difficulty in any of my assignments from trooper through the rank of captain, which would be through 1994 -Q. '94. A. -- that I had any problems. I don't recall it creating any problems for me at all. It was during that time frame after I made executive staff and, again, I guess because I was on the phone more often I was having problems with all the time hearing and having to ask to repeat when I would be talking to some female voices and also in large rooms with background noise at meetings. So sometime between July of '94 and whenever it was in '97 that I went and had the test. Q. Right. I mean, I think you're telling me that you don't recall any problems being created on the job prior to your being a captain because of hearing issues? A. Prior to being major. I don't recall through my rank of captain. Q. I'm not asking, in my question I'm not asking you whether you felt there were any problems being
Page 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Okay. Right now I'm asking you aside from annual physicals that the State Police did for you, do you remember when you had your first audiology test by someone who wasn't provided by the State Police? A. Yes. That would have been this Dr. Smith and I'm going to say it was 1997, to the best of my recollection. Q. Do you recall whether aside from the one test that you were given whether they gave you a test called the auditory brainstem response test? A. If that involves the headset with the high pitch, that's the only other kind that I can recall having. Q. Right. So the only test you remember is that one you have described for us, right? A. Right. Q. That's good. I'm trying to get back to when you first recall that you were having hearing problems. You have already told me about when you began with the hearing aids. You have told me about in '97 going to Dr. Smith and having some testing. And I'm trying, without looking at the medical records, trying to jog your memory as to what time earlier than '97 that you first recognized that

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

created. I'm asking you when did you first start recognizing that you had hearing loss issues? A. And I'm saying sometime between July of '94 and when I went for that test in '97. Q. Okay. So you're saying between '94 and '97 you were recognizing that you had hearing issues and that led you to get the audiology test by Dr. Smith? A. Correct. Okay. Q. Then I'm trying to jog your memory about whether or not even before '94 you were recognizing that you had hearing issues. A. I can't sit here and say that I do. Q. That's fine. We're going to look at some records that may jog your memory. Okay? A. Okay. Q. I'm trying to say that do you remember if before '94 your family was recognizing that you had hearing issues before '94? A. Not that I'm aware of. All I can tell you is in '97 once I got the hearing aids they were saying that they noticed that we didn't have to play the television as loud and stuff like that, but that was about the only issue, the television. No, prior to that, no.

11 (Pages 38 to 41) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 15 of 42
Chaffinch, et al. December 22, 2005
Page 44

v. C.A. # 04-956-GMS
Page 42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Now, between '94 and '97 and your having the 1 2 first test with Dr. Smith, is it your testimony that you were still able to do your job, whatever your job 3 4 was? 5 A. Yes. 6 Q. Right? 7 A. (The witness nodded.) 8 Q. And you were a uniform officer, right? 9 A. Correct. 10 Q. You were operations major at Kent County, 11 correct, Kent and Sussex County, correct? 12 A. Correct. Q. In '94 you were also a commander at Troop 5, 13 14 right, early part of '94? 15 A. Correct. 16 Q. And as a uniform officer -17 A. Let me back up. 18 Q. Go ahead. 19 A. I was troop commander at Troop 7 in '94. 20 Q. I'm sorry. I misread. Right. Exactly. 21 You were a troop commander in the first 22 half of '94, right? 23 A. At Troop 7, correct. Q. Right. As a major and as a captain you were a 24
Page 43

A. I was never on the SORT team, but as I guess probably starting at the rank of lieutenant and certainly as a troop commander and certainly as a major you have dealings with them because you go to situations where they're called in and as a troop commander and certainly as a major you're going to have a big impact on what action is the final resolution to the situation. Q. Right. I think you're telling me that as a troop commander there are situations you responded to that the SORT team was involved with? A. Absolutely. Q. And I think you're telling me that as the operations commander for Kent and Sussex County there were situations you responded to that involved the SORT team? A. Absolutely. Q. And so I think you're telling me that you were on the scene at crisis situations that involved the SORT team? A. Absolutely. Q. And is it fair to say that in those crisis situations that involved the SORT team that you were in the decision-making loop on the scene at those
Page 45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

uniform officer of the Delaware State Police, right? A. Correct. Q. You had full law enforcement powers, correct? A. Correct. Q. You were expected to be able to perform any and all law enforcement functions that a police officer has to perform, right? A. Correct. Q. You were expected to be able to perform arrests, right? A. Correct. Q. And you were expected to be able to respond to crisis situations? A. Correct. Q. You're expected to be able to keep the peace, right? A. Correct. Q. You're expected to be able to come to the aid of people in life-threatening and other situations. Is that correct? A. That is correct. Q. By the way, did you ever have any involvement with the SORT team during your career, meaning a commander or anything like that?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

times? A. Yes. Q. Right now I think SORT is commanded by a sergeant. Let's just assume that. A. Okay. Q. If you're the operations major for the county and SORT is commanded by a sergeant and you're on the scene, are you the senior-ranking officer there? A. If you're the major it's a good chance that you are because there's only two people that outrank you and they don't usually come to SORT operations. Q. So then you would be involved in decision-making on the scene? A. Correct. Q. Just jumping back to some of the hearing symptoms you were having, this thing about talking on the telephone and female invoices, did that carry over to other forms of communication, like radio communication or things like that? A. You know, I can't say that I can ever recall having a problem with the radio in the police car. I just didn't. Maybe I had it up louder than maybe most people. I don't know. But I don't recall that ever being a

12 (Pages 42 to 45) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 16 of 42
Chaffinch, et al. December 22, 2005
Page 48

v. C.A. # 04-956-GMS
Page 46

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

problem. Q. But going back to 2000 when you retired, did you have a State Police-issued cell phone? A. Absolutely. Q. And when did you start using a State Police-issued cell phone in your career? Would you have used it as a captain? A. I'm sure I had one as a captain. I'm assuming, making that assumption. I would say when they came out and when they got issued to the respective ranks, if I was in the rank that was supposed to get one I got it. Q. You definitely remember having a State Police-issued cell phone when you were a major? A. Absolutely. Q. Let's just think back to Troop 7, which isn't all that far back. Let's just simply say '94. You remember using cell phones back in '94, don't you? A. Correct. Q. In going back to these crisis situations where the SORT team might be there or whatever and you were in a decision-making role, during those kinds of things communications also happened with people off
Page 47

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

never comes back? A. Oh, yeah. Q. Now, did you ever discuss your hearing loss with somebody in human resources at the Delaware State Police? A. I don't recall speaking to anybody in human resources. The only person I can recall speaking to at the time was my superintendent, which was Colonel Ellingsworth. Q. Colonel Ellingsworth. We will come back to him. You're saying you don't recall speaking to John Dillman about your hearing issues in personnel, right? A. I don't recall. Did I? It's possible, but I don't recall. Q. Did he know you had hearing issues? A. He gets all these reports back, so I'm sure he did. I would assume he did. I know that's a bad thing to do, but I would assume he did. It was no secret. Q. Okay. Well, that's where I get back to this Miracle Ear quote. By "It was no secret," are you saying that once you started wearing hearing aids
Page 49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

the scene. Isn't that true? A. Correct. Q. So, for example, you could be communicating over a cell phone with some other people involved in the situation during a crisis. Is that true? A. If it's during a crisis it's going to be somebody involved with it, yes. Q. There could be a thing where you're communicating over the cell phone with an FBI or a Treasury response team? A. Could be. Could be. Q. And after you started wearing the hearing aids, did you feel you were still able to do your job as a policeman? A. Yes. Q. Now, did you ever discuss -- before we do that, so when you did see Dr. Smith, if you can remember, did he tell you you had hearing loss at the higher levels? A. That's my recollection, is that my problems were at the high -- I'm sure I heard it from him because I don't know who else I would have heard it from -- at the high decibel levels is what I recall. Q. And he told you this loss is permanent and it

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

anybody that was working with you in the State Police knew you had hearing problems? A. They knew I wore hearing aids. Q. Before you started wearing hearing aids, did people dealing with you know that you were turning up volumes louder and things like that to accommodate yourself? A. I never heard anybody say anything. I can honestly sit here and tell you I never heard anybody say to me "Man, you're playing this louder than what other people are." I never had that happen on the job. Q. Once you started wearing the hearing aids you're saying that everybody knew? A. Everybody knew that I was wearing them? Q. Right. A. Correct. Q. And John Dillman would have been one of those people who knew you were wearing hearing aids? A. Again, there was no secret and I wasn't hiding anything. Q. Right. So what was the policy of the division as far as you understood it at the time you were experiencing hearing loss issues?

13 (Pages 46 to 49) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 17 of 42
Chaffinch, et al. December 22, 2005
Page 52

v. C.A. # 04-956-GMS
Page 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Well, that's why I went to the superintendent and I can just about quote what I said to him. I said, "Alan, if this creates a problem, I'll retire today." And he said, "Joe, it does not create a problem." And I said, "Very good." Q. "If this creates a problem, I'll retire today" and he told you "No, it does not create a problem"? A. Correct. Q. Do you recall if he said something like "When you have a problem with seeing, you get glasses; when you have a problem with hearing, you get hearing aids"? A. You know, I can't say that I heard him say that exactly, but that sounds like him and I know I have used the same terminology. I have some friends that are pretty vain male individuals and I tell them "You're stupid. If you're having a hearing problem, take care of it. If your eyes start to go, you get glasses to improve them." I said, "You know, it's the same thing." Q. Sergeant Foraker has told me at some State Police DSTA probably function within the last couple of years you told him a little bit about this
Page 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Right. Chris remembers from the conversation where you're saying, "When I had a problem I spoke to Colonel Ellingsworth" -- and we're in agreement on that, right? A. Correct. Q. And Chris remembers in the conversation that you did mention this phraseology I have tried to use, that Ellingsworth said, "When you have a problem with seeing, you get glasses. When you have a problem with hearing, you get hearing aids." So I'm just trying to ask you does that jog your memory that he might have said that? A. You know, I don't know how long ago Chris and I had this conversation. I'm not going to sit here and say I can absolutely remember him saying that, but I can say this. That sounds like Alan and that's why if he said that's what I said, then that was said. Q. Okay. Thanks. And so Colonel Ellingsworth, he didn't make an issue of your hearing loss? A. No. Q. He did not revoke your powers as a police officer? A. No, he didn't.
Page 53

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

conversation with Colonel Ellingsworth. A. Probably. I don't doubt it. Like I said, it was no secret. Q. I understand that. You found Sergeant Foraker to be a truthful officer with your experience with him? A. I have had nothing but good things to say about him, anything, whether on the job or off the job. Q. Right. You're familiar with his reputation as an officer, aren't you? A. Yes, I am. Q. And he has a reputation of the highest order. Isn't that true? A. In my mind he does. Q. You know that the Delaware State Police, for example, has rules and regulations on truthfulness and honesty? A. Correct. Q. It's a very serious matter with the police, right? A. It is to me. Q. And is it true that he has the highest reputation for his truthfulness and honesty? A. In my eyes he does.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. He did not suspend you because you had hearing issues? A. No. In fact, as I said earlier, I told him I would retire today. He said, "Absolutely not. It's not necessary." Q. He didn't send you for a fitness for duty exam? A. No. Because I think that came about from my physical, if I recall correctly, because that's why I say I can't sit here and say that the state physical puts you in that box and all that, but I'm almost sure what happened was I was told by the state people that I had this situation and I reported back to Alan and said I'm going to my own doctor and get it taken care of. Q. Right. But you know that there are times when an officer's fitness for duty comes into question? A. Oh, yeah. Q. The Delaware State Police during your time there had means of determining whether an officer still should be carrying a gun and exercising police powers, correct? A. Correct. Q. For example, an officer could be having a lot of emotional stress at home or death in the family or

14 (Pages 50 to 53) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 18 of 42
Chaffinch, et al. December 22, 2005
Page 56

v. C.A. # 04-956-GMS
Page 54

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

things like that, emotional issues, correct? A. Correct. Q. And the Delaware State Police has always had the authority that if they thought there were questions in a trooper's fitness to send him for examinations by qualified people, right? A. They would do it, absolutely. Q. If an officer has physical problems, the Delaware State Police also has the authority to send them for what's called fitness for duty exams, correct? A. Absolutely. Q. So my question to you was: After whatever report came back from your physical and after your conversation with Colonel Ellingsworth, Colonel Ellingsworth did not direct you to have a fitness for duty exam? A. No. Q. And who was the lieutenant colonel under Ellingsworth at that time? A. That would have been Jerry Pepper. Q. So what year would this conversation have been in when you went to him and told him about that? A. Again, I'm going to use the year 1997 as my
Page 55

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Al was colonel. Q. Is that right? A. Yes. Q. That goes a little further back than I'm familiar with. Okay? A. Okay. Because I replaced him. Q. All right. So did Lieutenant Colonel Pepper also know that you had hearing issues? A. Oh, yeah. The entire, like I said, the entire staff knew. As far as I'm concerned, anybody that worked under my command -- well, I can't say the troopers on the street. It was no secret. It was there. I wear them. They're in there and everybody had the opportunity to know. Q. Right. But I'm just talking about who is above you in the chain. And there's only two people? A. Everybody at my rank and above knew. Q. Right. So Jerry Pepper was over you? A. Absolutely. Q. And you're telling me he knew you had the hearing issues? A. Absolutely. Q. He didn't send you for a fitness for duty exam either?
Page 57

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

sort of landmark. For whatever reason, I can recall that I was 51 when I started wearing hearing aids. So I'm going to say it was '97 because I was born in '46. Q. Okay. So you think it was '97? A. Yeah. Q. So thinking back, because I just don't want to make any mistakes who the colonel was and who the lieutenant colonel was, so you're saying Alan Ellingsworth was definitely the colonel that you talked to? A. He was the colonel I talked to. And that's why I say because I'm sure there was a time frame there from when I got my physical until when I got or had to go to my own doctor to actually get the hearing aids. So sometime after my physical, which again knowing what I would do, I went to him the first opportunity I had to meet with him and I told him, if not the same day. Q. Right. But it's Alan Ellingsworth? A. Alan Ellingsworth. Q. And your recollection is that the second in command was Jerry Pepper? A. Yeah. He was second in command the whole time

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. No. Q. Then John Dillman at that time was the civilian director of personnel for the State Police, right? A. Correct. Q. And he had a deputy who was a uniform officer under him, correct? A. Yes. Q. But John Dillman was the highest-ranking person? A. Right. Q. And John Dillman knew that you were wearing hearing aids? A. I'm assuming he did. I mean, like I said, I know they get these reports to put in their files. Q. It was that, plus you interacted with him? A. Again, through word of mouth, exactly. Q. You were in the headquarters building on the second floor, I guess, right? A. Correct. Q. He was in the headquarters building on the first floor, correct? A. Correct. Q. You see people in the halls every day? A. And we passed in passing almost every day, if
15 (Pages 54 to 57)

Wilcox & Fetzer, Ltd.

Professional Court Reporters

(302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 19 of 42
Chaffinch, et al. December 22, 2005
Page 60

v. C.A. # 04-956-GMS
Page 58

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

1 not sitting down and talking about something. 2 Q. Right. And John Dillman never asked you to 3 have a fitness for duty exam either? 4 A. No. 5 Q. Right. Now, during this time when you were concerned for your hearing, did you ever learn of any 6 7 written policies the State Police had as far as 8 hearing loss, written policies? A. I'm not aware of any one way or the other. You 9 10 know, again, I'm looking, I'm thinking back to 11 policies. Policies could be dealing with anything 12 that -- if I had a hearing problem that couldn't be 13 corrected, just like glasses couldn't correct a sight problem, you know, I wouldn't have been able to stay 14 15 on board. Q. You don't have any hearing devices in your ears 16 17 today, do you? 18 A. Yes, I do. 19 Q. Oh, you do? 20 A. Both of them. 21 Q. Really? 22 A. Yes. 23 Q. Okay. My father-in-law used to have hearing 24 aids and I haven't dealt with anybody for he's been
Page 59

A. Absolutely. Q. But going back to '97 and through your retirement with the State Police, no one in authority over you sent you for independent testing to determine if Dr. Smith made a mistake, right? A. No. Q. No one sent you for independent testing to determine whether whoever was giving the annual physicals for the Delaware State Police made a mistake? A. No. Q. No one, for example, they didn't send you up to the University of Pennsylvania or Johns Hopkins to have you get an independent, get another opinion on the level or severity of your hearing loss? A. No. Q. They just took your word and your doctor's word? A. I guess, yes. Q. Right? A. Yes. Q. They didn't ask for a second opinion? A. No, they didn't. Q. And since they didn't ask for a second opinion,
Page 61

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

dead about ten years, so I don't know what the technology is like anymore. A. They're flush, but they're in the ear. Q. They're there, okay. Are you saying that today you in a crowded room with the aid of the hearing aids you can totally compensate for the hearing loss? A. I can -- I don't know that you ever totally correct it, but what I do is it's not as difficult. I still -- and I guess this is probably one of the ways you correct things and compensate for things, is I make sure I'm looking at people as I'm speaking to them and as they speak back to me. I pay closer attention. Maybe that's the word I want to use, the terminology I want to use. Q. Right. So you're saying even with the hearing aids even today it doesn't totally compensate for the hearing loss? A. I don't think there's anything that would totally compensate for it, but it certainly is a lot better. If I take them out, I can notice a difference. Then when I put them back in, the clarity and everything is there. Q. It does improve it?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

they never asked for a third opinion, right? A. You got to come to two before you hit three. No. Q. So they relied on the situation as you presented it to them. Is that correct? A. Correct. Q. And if you had not gone to the colonel and talked to him about it, you don't have any basis to believe that they would have ever raised the question, do you? A. Well, I think they would have because, again, in the conversation I had with the state's attorney in the last couple, three weeks there was one time in the series of testings that it came up that my hearing was abnormal and I want to say that was in the '96-97 time frame because I know, again, when that became known to me. And knowing the way that I operated, as soon as I was made aware of that I had a problem I went back to Alan and I would almost be willing to bet that I met him that day, unless my physical was at the end of the day or something, but the very first opportunity that I had to meet with him I let him know about it. Q. Well, let's look then at some of those medical records. Okay? You still have in front of you what I

16 (Pages 58 to 61) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS
Price, et al. Joseph N. Forester

Document 140

Filed 04/20/2006

Page 20 of 42
Chaffinch, et al. December 22, 2005
Page 64

v. C.A. # 04-956-GMS
Page 62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

marked as Forester Exhibit No. 1, I believe, your file. Okay? A. Okay. Q. Let's flip about five pages from the back. Do you see those little numbers on the bottom right-hand corner, D14 something. A. 15004? Q. Yes. Let's go to 14996. A. Okay. Q. Can you find that? A. Got it. Q. So what we're going to do here is we have 14996 and the next page would be a 14997, 998. On page 14998 do you see your handwriting? A. Co